THE PETE ROSE CONTROVERSY : COMMENTARY : Commissioner Should Let This One Go to Arbitration

Kenesaw Mountain Landis. Now that’s a name to conjure up the image of a man with a face chiseled out of living stone, white hair flowing like the powdered wig of a London barrister. That was a man for his times, a commissioner for dealing with the Black Sox and saving baseball.

But because Judge Landis established a strength and flexibility of stone for the office, that doesn’t mean baseball and the commissioner have to be forever bound to the philosophy of 1920.

Now A. Bartlett Giamatti has a ring of its own. So he doesn’t look quite as Olympian as Landis, Giamatti has a way with words and phrases and philosophy. He was president of Yale.

The opportunity is here for Giamatti to make a decision that would reach beyond Pete Rose -- momentous as it is -- and redefine the position of commissioner of baseball. He could bring his office into 1989 by calling for a panel of arbitrators to hear the case against Rose -- in public-- and to pass judgment.

It wouldn’t be stepping out of the issue, it would be stepping into a larger one. He wouldn’t be shirking his responsibility, he would be demonstrating the courage to create something new. He wouldn’t be giving in to Rose’s battalion of lawyers; he would be taking the issue out of their hands.

It would be a Solomon-like decision. It would make Giamatti’s history equal to Judge Landis.

The Cincinnati judge, Norbert A. Nadel, called a recess Thursday night in Rose’s suit to forestall Giamatti’s hearing scheduled for Monday. The lawyers wanted a 15-day injunction to give them time to argue for an independent panel of arbitrators.

But for the wrong reasons. They claim that baseball’s investigation has been an effort to get Rose. They claim Giamatti is not capable of unbiased judgment. They claim the investigation, which Thursday was disclosed as containing “nine witnesses” of Rose betting on baseball or the Reds, was an effort to find Rose guilty from the beginning.

They have not told us why the commissioner of baseball would want to get Rose. To the contrary, the possibility of deciding to suspend for life one of baseball’s most compelling figures is one man’s private agony. Giamatti would have liked nothing better than to be able to dismiss the charges as without merit.

Precedent says the commissioner has the power to ban Rose for life. “Bear in mind that Rose will have an appeal in court,” said Eric Schmertz, dean of law at Hofstra University and a prominent baseball fan. He likens Giamatti’s role to that of a police commissioner or a university president who can discipline employees by judicial procedure. “The court then has power to overturn,” Schmertz said.

Rose deserves no special consideration because he is a star. Nor should he have any less right than the least of utility infielders. The irony is that collective bargaining gives a player accused of gambling the right to a hearing by an arbitrator. But Rose, as a manager, is part of management and has no union protection. Giamatti could give him that without reducing the weight of evidence collected.

Schmertz, 63, is a baseball fan to the extent that he displays a baseball card with his own picture, made when he attended a fantasy camp three years ago. He is also a nationally known labor arbitrator and mediator and has ruled on baseball salary arbitration cases. “I favor impartial hearings,” he said. “I think it is better that one gets a distinguished impartial person whose job does not hang on satisfying a bunch of owners. I would applaud if the commissioner sought an impartial panel of three. I would love to be on that panel.”

When Landis took total power, baseball was rife with gambling incidents. It was still to be married to its reserve system for another half-century until the advent of free agency. Workers in America still had little protection from the decision or whim of management. Remember that when the tone of the courts and the thinking of America was for the rights of labor, baseball said “Never!” And then arbitration threw out the reserve system.

“Times have changed to collective bargaining since Landis,” Schmertz said. “Ballplayers have a totally different place. The process of 1920 has become outmoded.”

What we have to this point is comparable to an investigation turning up enough evidence to indict. Rose’s side has had the volumes of evidence for two weeks. Monday they are to respond in New York at Giamatti’s hearing, which is to include an opportunity to confront the sources of information. “Testimony has come from a convicted felon and a convicted liar,” Schmertz said. “Rose is going to have to have the opportunity to confront his accusers, or the administrative process is flawed and terrific grounds for appeal. Even I could win that case.”

That would be abuse of process. “Suppose the commissioner was an SOB and decided to crucify a player on trumped-up charges and does not give the accused his fair day,” Schmertz said. “No doubt that would be abuse of process.”

But a player is like a worker who has to go through internal procedures at his place of employment, and Schmertz said, “they are not so abhorrent, not different from procedures in agencies like the police department.”

This is not a criminal case. Giamatti cannot send Rose to jail, and Fifth Amendment rights about self-incrimination do not apply.

It’s all within the commissioner’s powers, unless A. Bartlett Giamatti finds it in his wisdom to decide that the commissioner, who is investigator, prosecutor and judge, should have the wisdom to ask for help. Baseball and Giamatti would be bigger for it.